Citation Nr: 0322410
Decision Date: 09/02/03 Archive Date: 09/08/03
DOCKET NO. 93-25 707 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to an increased rating for postoperative
residuals of an excision of osteochondroma from the right
tibia, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran served on active duty from August 1954 to
November 1955.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a January 1992 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York, which denied the veteran's claim for a
rating higher than 10 percent for the postoperative residuals
of an excision of osteochondroma from his right tibia. He
was scheduled for a personal hearing at the RO in April 1993,
to give oral testimony in support of his claim, but he
contacted the RO prior to the hearing and indicated that he
would be unable to attend due to the distance of travel
involved and his physical condition.
The Board twice remanded the claim to the RO for further
development of the evidence, initially in March 1996 and
again in December 1997. Each time, the RO continued to deny
the claim, most recently in December 2001. The RO since
has returned the case to the Board for further appellate
consideration.
FINDING OF FACT
The veteran failed to report for his VA compensation
examinations, scheduled for January and March 2003, to
determine the severity of his disability at issue, and he has
not shown good cause for his failure to report.
CONCLUSION OF LAW
The claim for a rating higher than 10 percent for the
postoperative residuals of an excision of osteochondroma from
the right tibia must be denied, as a matter of law, due to
failure to report for the VA examinations. 38 U.S.C.A.
§§ 1155, 5103A (West 2002); 38 C.F.R. §§ 3.327, 3.655 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, enacted on November 9, 2000, during the pendency of
this appeal, eliminated the requirement of submitting
evidence of a well-grounded claim. The VCAA also revised
VA's obligation insofar as notifying the veteran of the type
of evidence needed to support his claim-and thereby complete
his application for benefits, and assisting him in obtaining
evidence if it is potentially relevant to his case-unless
there is no reasonable possibility that such assistance would
aid in substantiating his claim. The VCAA has been codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002), and the implementing regulations are found at 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002).
As part of the notice mentioned above, VA must specifically
inform the veteran and his representative of which portion,
if any, of the evidence he must provide and which part, if
any, VA will attempt to obtain on his behalf. 38 U.S.C.A.
§ 5103 (West 2002); 38 C.F.R. § 3.159(b). See, too, Charles
v. Principi, 16 Vet. App. 370, 373-74 (2002).
The record on appeal shows the veteran has received the
required VCAA notice. The RO's rating decisions, the
statement of the case, the supplemental statements of the
case, as well as other correspondence with the veteran and
the Board's two remands, duly notified him of the laws and
regulations governing his claim. This included apprising him
of the VCAA, in particular, as well as the provisions of 38
C.F.R. § 3.655 concerning the fatal consequences of failing
to report for his VA compensation examinations. The RO also
explained the type of evidence he needed to support his
allegations-and prevail, obtained the evidence he cited as
relevant to his claim, and indicated, as well, that it would
obtain any additional evidence that might otherwise support
his claim. See the RO's correspondence to the veteran dated
in April 1999, August 2002, and March 2003; the supplemental
statements of the case dated in March 1997, May 1997,
December 2001, and April 2003; and the Board's remands dated
in March 1996 and December 1997.
Moreover, VA has made reasonable efforts to obtain all
relevant records. Specifically, the information and evidence
that have been associated with the claims file consist of the
veteran's service medical records, identified post-service VA
treatment records, VA examination reports, and written
arguments presented by the veteran and his representative in
support of the veteran's claim. Therefore, all relevant
evidence has been obtained for determining the merits of his
claim and no reasonable possibility exist that any further
assistance would aid him in substantiating his claim. See 38
U.S.C.A. § 5103; 38 C.F.R. § 3.159(d); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Accordingly, because
there is no indication that there is additional outstanding
evidence that is necessary for a fair adjudication of the
issue on appeal, consideration of the claim at this juncture
may proceed especially since it poses no risk of prejudice to
the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993);
VAOPGCPREC 16-92 (1992).
II. Legal Analysis
The veteran says that his right knee and leg disorder has
gotten progressively worse over the years causing severe
impairment in his right lower extremity, as a whole. He also
believes he is entitled to the benefit of the doubt
concerning this.
Bear in mind, however, that, although VA's duty to assist
normally includes conducting a thorough and contemporaneous
examination that takes into account the records of prior
examinations and treatment, this is not an absolute mandate.
See, e.g., Green v. Derwinski, 1 Vet. App. 121 (1991);
Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v.
Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App.
377 (1994); 38 C.F.R. § 3.326 (2002).
VA shall provide a medical examination or obtain a medical
opinion when such an examination or opinion is necessary to
make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West
2002).
But there is a special exception, allowing VA to deny a
claim, as here, requesting a higher rating for an already
service-connected disability when entitlement or continued
entitlement to the benefits at issue cannot be established or
confirmed without a current VA examination or reexamination.
This presumes the veteran has not shown good cause for his
failure to report for his evaluation. If he has not,
his claim for an increased rating shall, as a matter of law,
be denied. 38 C.F.R. 3.655(a), (b) (2002) (emphasis added).
In other words, the Board does not have discretion to decide
the case; the result is a forgone conclusion. This is
similar to the situation discussed in Sabonis v. Brown, 6
Vet. App. 426 (1994), where the law was entirely
determinative of the outcome.
In accordance with 38 C.F.R. §§ 4.1, 4.2 the service medical
records disclose that the veteran was admitted to a Naval
Hospital in July 1955, at which time he underwent removal of
an osteochondroma on his right tibia. Based on evidence of
pain in his right leg and tenderness over his right patella
region on a VA examination in April 1979, a July 1979 rating
decision granted service connection for the postoperative
residuals of the excision of the osteochondroma from the
right tibia and assigned a 10 percent rating under Diagnostic
Code 5257.
VA medical records during the ensuing years from 1980 through
1992 show the veteran continued to receive clinical attention
for complaints of right knee pain with occasional radiation
of the pain into his right leg. In October 1981, he had an
abnormal bone scan of his right knee suggestive of
degenerative joint disease (i.e., arthritis). A November
1992 VA examination revealed slight tenderness of his medial
malleolar area, as well as over his right talar area. There
was no swelling or effusion in his right knee. The pertinent
diagnosis was mild degenerative joint disease of the right
knee with patellofemoral pain with flexion contracture.
On examination in February 1997, the veteran complained of
pain and numbness in his right knee, just below his surgical
scar. His right knee showed no swelling, rubor, calor,
effusion, or ecchymosis. Range of motion was from 0 to 130
degrees. Lachman, pivot shift, drawer, Ober and Apley signs
were negative. There was no medical or lateral joint line
tenderness to deep palpation. There was no evidence of
instability or false motion. X-rays again confirmed the
degenerative joint disease. The pertinent diagnosis was
status post trauma to the right knee; internal derangement of
the right knee, status post excision of cartilage of the
right knee; and post-traumatic degenerative joint disease of
the right knee.
In December 1997, the Board determined that additional
development of the medical evidence and medical examinations
were necessary in order to determine the extent of the
service-connected right knee disorder. By letter dated in
April 1999, the RO informed the veteran that his appeal had
been remanded by the Board for further development. He also
was informed that the VA Medical Center in New York, New
York, was being asked to schedule him for an examination to
obtain a medical opinion concerning the severity of his
disability. It was indicated that he would be notified by
the Medical Center when and where to report. He was further
notified of the provisions of 38 C.F.R. § 3.655 regarding the
consequences of failing to report for his examination. But
still, he failed to report for his examination scheduled for
August 1999. He also failed to report for any of his more
recent examinations rescheduled for November 2001, January
2003 and March 2003.
As explained above, the regulations provide that a veteran
has an obligation to report for VA examinations and
reexaminations which are scheduled in connection with his
claim for an increased rating. And if, without good cause,
he does not, his claim must be denied. Examples of good
cause include, but are not limited to, the illness or
hospitalization of the veteran, death of an immediate family
member, etc. 38 C.F.R. § 3.655 (2002). None of this has
been shown in this case.
Reexamination will be requested whenever VA determines that
there is a need to verify either the continued existence or
the current severity of a disability. Individuals for whom
reexaminations have been authorized and scheduled are
required to report for such reexaminations. 38 C.F.R.
§ 3.327(a) (2002). The veteran, here, simply did not fulfill
this obligation.
Evidence in the claims file confirms the RO attempted to
schedule the veteran for VA examinations of his service-
connected right knee disorder in April 1999, November 2001,
January 2003 and March 2003, but that he failed to report for
any of those examinations. There is nothing in the record
indicating that he did not receive notice of them. Rather,
he just did not cooperate with the RO in its efforts to
schedule him for those examinations. And that is indeed
unfortunate because information obtained from them might have
provided evidence to support his claim for a rating higher
than 10 percent for his right knee disorder.
The RO's April 1999 letter, in particular, notified the
veteran of his duty to report for the VA examination in
connection with his claim. There is nothing in the record
showing that he had good cause for failing to appear for his
scheduled examinations. The duty to assist him in developing
his claim is not a one-way street, and he has failed to
cooperate in getting his examination completed.
Wood v. Derwinski, 1 Vet. App. 406 (1991). Under these
circumstances, there is no alternative but to deny his claim
as a matter of law. 38 C.F.R. §§ 3.327, 3.655; Engelke v.
Gober, 10 Vet. App. 396 (1997); Sabonis v. Brown, 6 Vet. App.
426, 430 (1994).
ORDER
The claim for a rating higher than 10 percent for the
postoperative residuals of the excision of the osteochondroma
from the right tibia is denied.
____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.